Does Wave of Fortnite Dance Lawsuits Spell Doom for Epic Games?

Fortnite is one of the most popular games in the world. Played by billions and yielding so much money that Tim Sweeney was able to enter the Billionaire Club. Not everyone is happy about Epic Games’ success and are targeting the game’s use of dance emotes popularized by other individuals to be used in Fortnite. The key word here being popularized, not owned, but could Epic Games be in trouble?

Back in early December, rapper Terrence Ferguson, also known as 2Milly, stated he would be suing Epic Games’ for the use of “Swipe It”. The dance was introduced in season 5’s Battle Pass and is identical to his dance “Milly Rock”. Ferguson has stated that Epic sold it without his consent or credit and filed a complaint against Epic Games on December 5th.

The suit states that he’s seeking “injunctive relief and damages including but not limited to, Epic’s profits attributed to its improper use of the Milly Rock and Ferguson’s likeness.” This would’ve been the only person to sue Epic for use of specific dance moves.

Most notorious for playing Carlton in The Fresh Prince of Bel-Air Alfonso Ribeiro is one of the most recent celebrities to sue Epic Games for what he claims is the Carlton Dance. According to a statement provided by TechCrunch through Ribeiro’s lawyer conveys that Ribeiro is not only going after Epic Games’ but Take-Two Interactive and Visual Concepts.

It is widely recognized that Mr. Ribeiro’s likeness and intellectual property have been misappropriated by Epic Games in the most popular video game currently in the world, Fortnite. Epic has earned record profits off of downloadable content in the game, including emotes like “Fresh.” Yet Epic has failed to compensate or even ask permission from Mr. Ribeiro for the use of his likeness and iconic intellectual property. Therefore, Mr. Ribeiro is seeking his fair and reasonable share of profits Epic has earned by use of his iconic intellectual property in Fortnite and as a result is requesting through the courts that Epic cease all use of Mr. Ribeiro’s signature dance.

Pierce Bainbridge Beck Price & Hecht LLP is also pursuing similar claims against Take-Two Interactive and Visual Concepts, developer of the NBA 2K series of video games, on behalf of Mr. Ribeiro

The issue with this statement is that back in 2012 Ribeiro stated to TMZ that the dance was a combination of Courteney Cox’s cameo in Bruce Springsteen’s Dancing in the Dark video and Eddie Murphy’s “white man dance” from his Raw comedy special. Which means that the dance is based on existing moves.

It’s common to copyright ideas that share qualities from other things to make something new. Take for example the original Doom, mechanics and gameplay elements from that IP has been used, manipulated, and built on to create brand new IPs. However, unlike Doom the Ribeiro’s case relies heavily on whether he owns the dance and if it’s linked to his likeness. Seeing that he has been quoted stating the dance borrows elements from other dances it’s likely this one will fall through.

Russel Horning, also known as Backpack Kid, is another celebrity who is suing Epic Games’ over a dance that he believed Epic is using without permission.

Horning claims to own “Flossing” which helped him gain notoriety online after posting videos of him doing it on various social media channels. The viral videos helped Horning get invited to various events to perform the dance. Fortnite’s dance called “The Floss” is what provoked legal action against Epic.

Like Ribeiro, Horning is claiming ownership of the dance, however, footage on YouTube shows that the dance has been performed earlier than when Horning popularized it. Down below you can see footage at 3:07 but the nail in the coffin is that Horning consented for Epic Games to use his likeness.

Many of these cases are built on the foundation of people who claimed they popularized the dances, not created them. Most of these cases use the term “likeness” but the dances being disputed are either not owned or represent these individuals. Many people may link these dances to those particular people but as for ownership for these specific moves and directly represent a single-person, that case holds little water.

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